from the FOIA-to-the-rescue dept

A lot of talk about "bad hombres" and former "shithole" denizens raping, pillaging, and terrorizing their way through our country has led to a lot of beefed-up immigration enforcement. ICE, once just a post-9/11 also-ran relegated to counterfeit panty raids and seizing sites the RIAA didn't like, is now front and center. It is the face of immigration enforcement and it's the agency that's decided a handful of executive orders outweigh the Constitutional rights we extend to asylum seekers and other entrants into this country.

Lots of rights go violated in the case of Mexican journalist Emilio Gutierrez-Soto. Gutierrez entered the country with his son, Oscar, in June 2008. He made credible claims his life would be in danger if he was returned to Mexico, stating that his house had already been raided at least once by Mexican military police, presumably in retaliation for his reporting. He was detained for seven months and separated from his son while asylum proceedings continued. After being released, he reunited with his son and other members of his family.

The proceedings dragged on. Gutierrez made a living operating a food truck while nothing much got adjudicated. He also criticized the US's immigration policies and procedures as being unnecessarily punitive, especially considering the country's history of welcoming immigrants. He noted the extremely odd handling of asylum cases like his, where people seeking refuge from persecution are tossed into a jail or detainment center for months or years while the courts slowly make their way through their case backlog.

In July 2017, immigration judge Robert Hough finally ruled on his nine-year-old asylum claim. Hough ruled that Gutiérrez did not present sufficient evidence to prove that he was targeted for his journalistic work or that his life would be in danger if he returned to Mexico.

This meant Gutierrez would be sent back to Mexico despite building a life for nine years without incident on this side of the border. He could still appeal the decision but he would have to wait for ICE to make its own call on deportation. The bureaucracy requires a final determination from ICE before an asylum seeker can seek an emergency stay from the Bureau of Immigration Affairs. Before meeting with ICE to get its final decision, Gutierrez issued his own parting shot.

On October 4, 2017, Gutiérrez accepted the National Press Club's prestigious John Aubuchon award on behalf of all Mexican journalists. During his acceptance speech at the club's black-tie awards gala in Washington, D.C., Gutiérrez accused the U.S. government of hypocrisy for advocating for human rights abroad while denying them at home. Gutiérrez was particularly critical of the United States' asylum policies.

"Those who seek political asylum in countries like the U.S. encounter the decisions of immigration authorities that barter away international laws," he said.

ICE told Gutierrez and his legal rep it would consult with the BIA before making a decision. It never did this. In fact, it tossed him and his son into a vehicle and began driving them toward the border within moments of denying a stay to Gutierrez. Gutierrez had the right to stay in the country until the BIA made a final determination but ICE ignored this. It also decided to lock the two asylum seekers up after the BIA issued its emergency stay.

Before Gutiérrez could be handed over to the Mexican government, the BIA called [attorney Eduardo] Beckett back with good news — Gutiérrez and Oscar had been granted an emergency stay of deportation. Beckett immediately called ICE and told them to bring Gutiérrez and Oscar back. The agency refused. The BIA's emergency order might have prevented ICE from deporting Gutiérrez and his son, but it did not prevent the agency from detaining them.

ICE agents took Gutiérrez and Oscar to an immigration detention facility. They would remain in ICE detention for nearly eight months, and Gutiérrez's food truck would be stolen while he was still detained.

This is where things get even more fucked up. On top of the additional detention, FOIA'ed emails showed ICE targeted Gutierrez for deportment even before his case had received a final ruling from the court and while it was supposed to be targeting the "worst of the worst" for immediate ejection. The presiding judge noted ICE's lie in his ruling.

“Respondents [ICE] contend that they detained Petitioners [Gutierrez-Soto and his son] based on a warrant issued after the removal order issued by the immigration judge became final in August 2017,” Guaderrama wrote in a July 10 decision. “However, the emails between ICE officials undermine Respondents’ argument. The emails show that ICE officials were already targeting Mr. Gutierrez-Soto in February 2017. … This is significant because it is before the immigration judge issued the removal order in July 2017, which became final in August 2017.”

The judge also found this to be "sufficient evidence" Gutierrez was targeted for his comments about immigration policies and ICE. Rather than continue to fight this lawsuit after stacking the deck against itself by lying to the court, ICE agreed to release Gutierrez and his son.

Unfortunately, ICE may still get another chance to deport a critic. Unbelievably, Gutierrez's asylum case still isn't completely resolved. His appeal has been granted given the new evidence ICE targeted him for removal prior to a final judicial decision and quite possibly because they didn't like his exercising his First Amendment rights. If the judge decides Gutierrez can't prove he'll be persecuted by Mexican authorities if he's forced to return to Mexico, his asylum request will be denied. ICE may still get what it wants even after violating the asylum seeker's rights multiple times over the last several years.

ICE is an inordinately powerful agency. It has been for years, but it's now the right arm of an administration obsessed with rooting foreigners out and closing our borders. Its excesses will be excused with garbled talking points and MS-13 infographics. This single incident shows it's willing to ignore federal courts when not lying to them in order to punish a critic. If this is what it does during a publicized case, there are likely hundreds of similar abuses taking place that will go undiscovered.

from the like-super,-super-bad dept

Back in May, we wrote about Suburban Express, the comically awful bussing company that works the University of Illinois-Champaign to Chicago circuit and is owned by Dennis Toeppen, being sued by Illinois Attorney General Lisa Madigan. Why it was sued by the state will require you going through the backlinks above, but can more succinctly be expressed in the following math equation:

(legal threats against a redditor for negative reviews) x 2 +(doxxing complaining customers) + (lawsuits filed against customers for complaining) - (rescinding those lawsuits) + (refiling those same lawsuits again) + (Toeppen being arrested for harassing his critics) + (filing more lawsuits) x (sending out a racist email advertisement promising that you won't see Chinese people on its busses) = well, hello there, federal court

Okay, fine, so the equation wasn't all that succinct. Still, the answer to why Madigan sued is essentially because Surburban Express likely violated all kinds of laws in doing the above. Madigan's suit alleged a dizzying array of violations of civil rights and consumer protection laws, as well as Illinois law on civil rights. Toeppen stands accused of harassment of customers for leaving the company negative reviews, arbitrary refusal of service based on not liking customers for a variety of reasons including racial reasons, and having internal and external communications, such as the advertisement that ridicules Asians and Jews, because every bigot entree basically just comes with a Jewish piece of parsley. In all, Madigan included 182 pages of exhibits backing up her accusations.

It's not looking promising for Toeppen or Suburban Express in court. They agreed to a Temporary Restraining Order barring them from publishing the personal identifying information of customers, required them to take down the personal identifying information they already published, revise their lawsuits to redact gratuitously filed personal identifying information, and stop retaliating against customers for online reviews. Toeppen and Suburban Express agreed to have that order extended a few times, and now the AG wants to make it into a more long-term injunction. Meanwhile the attorney for Suburban Express and Toeppen wants to quit, citing strategic disputes and non-payment. Toeppen is falling back on the game-winning strategy of semi-coherent attacks on the media.

That last bit takes the form of a bizarre attack on The News Gazette. After reporting on the case, the News Gazette received a brief and vague bit of pushback directly from Toeppen as to its reporting about Toeppen's lawyer looking to exit the case. As per usual with Toeppen, the interaction was long on bombast and short on anything worthwhile.

After this article was published, Toeppen emailed The News-Gazette to criticize its reporting.

"Don't try to report on things you do not understand and are unwilling to research," he wrote. "Your reporting on this matter has been idiotic in the extreme."

A News-Gazette email asking for clarification bounced back with an error saying the sender's email address had been rejected.

"You're wrong, but I won't explain how, and I'll block your email address right after I send this!" is about as useless an interaction as I can think of. None of that changes the News Gazette's reporting about Toeppen's attorney seeking to no longer represent Suburban Express over both strategic issues and a lack of payment from Toeppen, not to mention that Suburban Express' insurance company is asking the court to declare that it doesn't have to pay for the lawsuit, essentially because the policy doesn't cover Toeppen being an asshole.

The Hartford has denied coverage, Long said, and Manufacturers Alliance Insurance Company denied coverage and filed a lawsuit against Toeppen and Allerton Charter Coach, which operates as a contractor for Suburban Express.

It's seeking a decision from the court on whether it correctly denied coverage, arguing that policies Allerton and Toeppen have exclude coverage when the damages result from intentional misconduct, as Madigan's lawsuit alleges.

Now, look, I know it might seem like I'm actively rooting against Toeppen and Suburban Express and for Madigan to at the very least make an example of them, but it only looks that way because it's absolutely true and I have no interest in pretending otherwise. The level of harassment and vitriol Toeppen has displayed, all because people don't want him to run his business as though this was Montgomery circa 1955.

from the what-you-sow dept

While we'll try to keep the grave-dancing at a minimum, it wasn't difficult to see this coming. Game publisher Digital Homicide has something of a history of lashing out against any negative reviews it might receive, of which there are many. Whether it is more high profile targets like well-followed YouTube game reviewers, or merely lowly Steam customers that offered reviews of Digital Homicide games, the company has taken to simply suing everyone for all the things as its reaction. It seemed easy to recognize that this was not a winning business strategy in general, but when Steam reacted to the latest attempts at litigation by simply dropping all Digital Homicide games from its store, things clearly became dire for the company.

And now the story comes to a close with a conclusion pretty much everyone saw coming: Digital Homicide has filed a motion to dismiss its lawsuit against those Steam customers, declaring the company to be financially ruined and unable to move forward with the litigation.

Speaking with TechRaptor, Digital Homicide’s James Romine explained that Valve’s decision to remove all of the studio’s games from Steam is what did them in:

“The case dismissal was only due to financial reasons caused by the removal of our games. I believe the case was very solid. There were in excess of 140 false statements by the 11 Steam users, tens of thousands of posts harassing myself and my customers, three direct interference with written contracts with third parties by Steam users (some of which were competitors), and much more. A combined in excess of 25 reports were filed against the worst users of the 11 with no resolutions being found.”

Well, you know, maybe if you hadn't attacked Steam customers on the basis of leaving bad reviews for your games, this wouldn't have happened. It's important to recognize, as I mentioned in an earlier post, that even though Romine talks a great deal about the vile vitriol some folks have harried his company with, the lawsuits come down to bad reviews. Suing those that leave negative reviews of your product isn't so much a business strategy as it is an attempt at business suicide, a lesson that appears to have been taught to completion to Digital Homicide.

The filing itself claims not only that Romine's business is "destroyed", but that he had sought out a local sheriff initially for help building a criminal case against the Steam users. Also, Digital Homicide would like a refund on its court filing fee.

One can only hope that other businesses will learn from this and not react to negative reviews by torpedoing their businesses through similar litigation.

After a watchdog blog repeatedly linked him and other local officials to corruption and fraud, the Sheriff of Terrebone Parish in Louisiana on Tuesday sent six deputies to raid a police officer’s home to seize computers and other electronic devices.

Sheriff Jerry Larpenter’s deputies submitted affidavits alleging criminal defamation against the anonymous author of the ExposeDAT blog, and obtained search warrants to seize evidence in the officer’s house and from Facebook.

The target of this raid -- supposedly the blog's author (although he denies being behind it) -- is another law enforcement officer. Wayne Anderson works for the Houma Police Department. Taken from his home during the raid were five cell phones and two computers -- including his children's laptop.

Sheriff Larpenter is trying to use Louisiana's criminal defamation law to prosecute Anderson. Unfortunately for the overreaching sheriff, that law isn't going to work.

The Louisiana Supreme Court ruled the criminal defamation law unconstitutional "insofar as it attempts 'to punish public expression and publication concerning public officials, public figures, and private individuals who are engaged in public affairs.’”

Larpenter is trying to get around this by claiming the "investigation" was prompted by a citizen's complaint -- that of Tony Alford, an insurance agent named in the blog's posts. The blog's author alleges impropriety related to Alford's no-bid contract to provide insurance coverage for the parish via the agency he works for, Alford, Staples, Lapeyre & Robichaux. The corruption hook here is that Sheriff Larpenter's wife also works for the same insurance agency.

So, it's not really about Tony Alford. It's about Larpenter and his wife. The blog has also made allegations about improper relationships between the department and the town's most powerful government officials, including District Attorney Joe Waitz, Jr. Unsurprisingly, this is the same DA Larpenter wants to prosecute the case.

When Larpenter was asked whether there is a conflict in him investigating an alleged crime involving himself, he replied, "If you're gonna lie about me and make it under a fictitious name, I'm gonna come after you."

He went on to say that once he finished investigating the blog, he would turn the case over to District Attorney Waitz to determine if Waitz wanted to prosecute it or “hand it off.”

Waitz, to his credit, has recognized the conflict of interest and has chosen to pass it on to another office for possible prosecution. But the charge is unlikely to stick, even with Sheriff Larpenter's maneuvering. Larpenter's comments make it clear this attempted prosecution is personal ("lie about me") and is willing to use an unconstitutional statute to justify a search/seizure of personal electronics. But even his invocation of a supposed "private" individual (the insurance agent) to obtain search warrants isn't going to be enough to salvage this blatant attempt to shut down a critic. As the parish's main insurance provider, Alford is very definitely a "private individual engaged in public affairs." Beyond that, he's a public figure in his own right.

In addition to holding public contracts, Tony Alford is also the acting President of the Terrebonne Parish Levee and Conservation District Board of Commissioners, a public position that requires him to file annual personal financial disclosures with the Louisiana Board of Ethics.

Even the process used to obtain the search warrant to seize Anderson's devices was a bit shady.

The one they used to search Anderson’s home was signed Tuesday by Judge Randall Bethancourt, who was not serving as the on-duty judge for criminal cases that day.

This suggests a bit of magistrate shopping by the Sheriff's Office. Now that the warrant has been executed and devices seized, a motion to quash is in place. But that does little for Officer Wayne Anderson. Not only has he been suspended (with pay) by the Houma Police Department while this farce plays out, but the court is holding onto his computers and phones until a hearing on the motion can take place.

The First Amendment implications of Sheriff Larpenter's raid are clear. That the search warrant -- in pursuit of bogus criminal defamation charges -- has already been carried out means Sheriff Larpenter will be facing Fourth Amendment violations claims as well in the inevitable civil rights lawsuit that will follow this debacle. Sheriff Larpenter should have had no problem fighting speech he didn't like with speech of his own -- especially considering his position as a public figure who holds a powerful office. Instead, he has chosen to abuse his position and power to silence a critic, something that's not exactly helping him look any less corrupt.

from the anonymity-is-important dept

Over and over again we've seen people try to interpret anything someone says about them that they don't like as defamatory. But just because you don't like what's said, that doesn't make it defamatory -- and that can also apply even if the statements actually were false.

We've written a lot in the past about the importance of protecting anonymous speech online, so it's good to see a good ruling in California protecting the anonymity of an online critic (found via Eriq Gardner's story at The Hollywood Reporter). The story involves an anonymous email that was sent to a Sony exec and a producer working on the movie Goosebumps, raising some issues about a visual effects company, named Vitality, doing work on the film. There's a lot of background here that can get confusing so I'll try to detail it here as simply as possible:

A few years ago, a special effects house named Hydraulx did visual effect work on a Sony Pictures film, Battle: Los Angeles.

At the same time, Hydraulx was producing an entirely separate (non-Sony) film Skyline that had some similar plot points (aliens invade LA).

There was a fairly public dispute in which Sony accused Hydraulx of a variety of things stemming from this apparent conflict of interest. Eventually that dispute was settled.

Sony and the producers of Goosebumps hired a visual effects company named Vitality to work on the effects in that movie.

There's some more in there, but that should cover the key establishing facts. This lawsuit was against an anonymous person who sent an email to Sony and a producer of Goosebumps suggesting Vitality is actually the same company as Hydraulx and expressing surprise that Sony would work with them again after the earlier dispute -- and also wondering if perhaps Vitality had hidden the Hydraulx connection in getting the job. Here's the email:

I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx. I was surprised to see ‘Goosebumps’ on Vitalitys [sic] IMDB as Vitality is co-owned by Greg and Colin Strause of Hydraulx and I thought neither you nor Sony had a good relationship with the Brothers after Skyline/Battle L.A.

Vitality and Hydraulx share owners (Greg & Colin), their Exec Guy Botham works for both companies - Vitality and Hydraulx even share L.A. and Vancouver offices, hardware, and infrastructure.

If Vitality misinformed you or Sony as to its ownership or profit participants in any way, please take my email into consideration.

I am a concerned vfx professional whom, myself, has been burned by Greg and Colin and I do not like people perpetuating what I consider bad business practices.

Thank you for your time in reading. I hope this email helps.

Regards,
A concerned VFX recruit.

Separately, Hydraulx and the Strauses were already engaged in a defamation lawsuit against some anonymous critics who had sent emails to a movie studio that Hydraulx was working with, claiming that the company was on the verge of financial collapse. Perhaps thinking this new email was from the same, or a related, individual Hydraulx added this person "Doe 2" to that lawsuit and went about trying to discover who it was. Doe 2 filed an anti-SLAPP claim under California's (pretty good) anti-SLAPP law.

A state trial court recognizing (correctly) that you can't reveal anonymous speakers without showing a prima facie case of defamation looked at the various statements in the email and determined that they were enough to show defamation -- and then ordered discovery to go forward to identify Doe 2. To establish the defamation case, there were statements from the various people behind Hydraulx and Vitality insisting that the Strause brothers had no ownership at all in Vitality (there are separate statements in the ruling suggesting that Hydraulx had sold its old equipment to Vitality, but it's never addressed if that's true or not) On appeal, the appeals court has rejected that pretty soundly, noting that a variety of points. But, most importantly, it finds that even though the statement about the same ownership may be false, that isn't enough to reveal an anonymous speaker.

The key to rejecting the defamation claim: most of the statements aren't actually about Hydraulx, but Vitality. On top of that, all of the statements can be seen as either statements of opinion or simply not defamatory at all. There's a big discussion on whether or not the use of the word "whistle-blow" implied some sort of criminal activity on the part of Hydraulx, but the court says it does not:

The trial court expressed a concern that “in the language of the law,” “whistleblower” implied Hydraulx engaged in criminal or wrongful conduct: “People don’t whistle-blow fun, nice things that are meaningless. People whistle-blow wrongdoing. . . . And the word whistle-blow . . . causes me to read it in a different light.” While we agree that, in the context of litigation, the term “whistle-blow” can imply an allegation of criminal or wrongful conduct, we must consider the word in the context of Doe 2’s emails and measure its use “not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of [the] reader.”...

The specific wording of the emails, and the order in which the information is communicated, are instructive. Doe 2 opened his emails with cautionary language, saying, “I hoped I might whistle-blow on Vitality Visual Effects and Hydraulx.”... The words “hoped” and “might” before “whistle-blow” signal that Doe 2 is using the term hyperbolically to introduce a communication of specific information that the recipients may not know. In context, the term explains why he is writing and introduces the information about Vitality and Hydraulx’s supposed shared ownership, which, in and of itself, is not defamatory.

The court also notes that just because the common ownership of the two companies, even while false, is not defamatory:

Although Greg Strause’s and Bothman’s declarations were sufficient to make a prima facie showing of falsehood with respect to the statements associating Hydraulx with Vitality, the allegation of common ownership is not defamatory on its face and Hydraulx has not offered any extrinsic facts supporting a defamatory innuendo. To the contrary, because Hydraulx’s complaint and declarations portray both companies in a positive light, there is no indication that the inaccurate attribution of common ownership was defamatory.

On top of that throughout the email, it's pretty clear that the individual is sharing information that he felt that producers/studio might not know, rather than making defamatory claims. Specifically, the emailer wasn't making new claims that were defamatory but calling attention to previously known information:

Hydraulx argues that Doe 2’s offer to “whistle-blow” and references to “bad business practices” and being “burned” imply a defamatory accusation Hydraulx engaged in dishonesty or wrongful conduct beyond the conflicts of interest addressed in the emails. We find that in context, the term “whistle-blow” was used hyperbolically to introduce the disclosed and non-defamatory allegation of common ownership and that Doe 2’s reference to “bad business practices” reasonably referred to the known or disclosed facts: Hydraulx’s Skyline conflict of interest and Vitality’s potential conflict if it failed to disclose common ownership. In context, the only reasonable interpretation of “bad business practices” is in reference to facts known to the recipients of the emails (Hydraulx’s prior conflict of interest) and facts disclosed in the emails (the false allegation of common ownership and Vitality’s potential conflict of interest involving Goosebumps .)

Got that? Because the only bad behavior the emailer was referencing by Hydraulx was the already known dispute -- and the only false claim wasn't defamatory, there's no defamation here. Hydraulx isn't claiming that the original stories of conflict of interest around Skyline/Battle:LA are defamatory (because it probably can't), so it can't really say this is defamatory here.

Also hurting the defamation case -- the emailed discussions among the folks working on Goosebumps in response to these emails was basically that they didn't even believe it in the first place.

The court also finds that the phrase "bad business practices" is so broad and vague that it also cannot be found to be defamatory:

The same is true in this case because behavior one person regards as a “bad business practice” may be acceptable to another person and conduct causing one person to feel “burned” may not affect another person at all. Someone might regard something as trivial as failures to return telephone calls as “bad business practices.” Another person
might use “bad business practices” to describe fraudulent or unlawful conduct. Similarly, a person might feel “burned” by any range of behavior, from a social snub to a fraudulent transaction. Without some reference to the type of undisclosed misconduct, e.g., “In my opinion, John Jones is a liar,” these comments are too vague and uncertain to be actionable as conveying a defamatory accusation.

This is potentially an important ruling on a number of different levels. Sometimes we get so caught up in the "true/false" dichotomy that we don't step back and look at the bigger picture. Indeed, my first impression on reading through the ruling was that the email might, in fact, be defamatory because of the false claims of ownership in Vitality. It was only after walking through the court's careful reasoning that I realized that the court is right here. Just because that claim is false, that doesn't automatically make it defamatory. Defamatory speech needs to not just be false, but false and injure someone's reputation. In this case, the email was clearly trying to portray Vitality in a bad light (and, to a lesser extent, Hydraulx), but the statements making them look bad were either based on factual claims or statements of opinion. The only statement deemed as false didn't harm Hydraulx's reputation at all.

It's good to see the court take the time to carefully parse the email this way and break it out. This will provide more protections for anonymous online critics in the future as well.

from the be-aware dept

We just wrote about the big social media companies agreeing to quickly take down content for "hate speech" in the EU, and warned about how problematic this was. The definition of "hate speech" matters quite a bit, and we've pointed out in the past how "hate speech" laws frequently morph into a tool for government censorship. So perhaps it should be no surprise at all that just around the same time that Google, Facebook, Twitter and Microsoft agreed to start censoring "hate speech" in the EU, we get another story from the Associated Press about how Russia is using its own hate speech laws to imprison dozens of critics who mocked the government on social media.

As the Kremlin claims unequivocal support among Russians for its policies both at home and abroad, a crackdown is underway against ordinary social media users who post things that run against the official narrative. Here the Kremlin's interests coincide with those of investigators, who are anxious to report high conviction rates for extremism. The Kremlin didn't immediately comment on the issue.

At least 54 people were sent to prison for hate speech last year, most of them for sharing and posting things online, which is almost five times as many as five years ago, according to the Moscow-based Sova group, which studies human rights, nationalism and xenophobia in Russia. The overall number of convictions for hate speech in Russia increased to 233 last year from 92 in 2010.

So what kind of "hate speech" on social media is now leading to Russians being sent to prison? Apparently anyone criticizing Russia's involvement in Ukraine:

Several months after his arrest, Bubeyev pleaded guilty to inciting hatred toward Russians and was sentenced to a year in prison. His offense was sharing articles, photos and videos from Ukrainian nationalist groups, including those of the volunteer Azov battalion fighting Russia-backed separatists in eastern Ukraine. Among them was an article about the graves of Russian soldiers killed in Ukraine and a video describing Russia as a "fascist aggressor" and showing Russian tanks purportedly crossing into Ukraine.

Less than two weeks after the verdict, Bubeyev was charged again. This time, he was accused of calling for "acts of extremism" and "actions undermining Russia's territorial integrity." He had shared the picture of a toothpaste tube and also an article under the headline "Crimea is Ukraine" by a controversial blogger, who is in jail now, calling for military aggression against Russia.

And it's not like this guy was a widely known individual. The article quotes his wife saying: "His page wasn't popular — he only had 12 friends."

So for folks who think it's a good idea for platforms to become the police over "hate speech," take a moment and think about what your worst enemy would do if he or she were able to define what "hate speech" meant.

from the free-speech-bullies dept

Earlier this month, David Kravets over at Ars Technica, wrote about a questionable order from Judge Marsha Pechman, allowing nutritional supplement firm Ubervita to issue a subpoena to identify a bunch of negative reviewers on Amazon and Craigslist. The order was not only premature, but incredibly broad:

We were concerned, however, because the early discovery had been authorized even though the motion was exceptionally bareboned, without any showing of legal and evidentiary merit, as required by the Dendrite rule, and because Ubervita’s moving papers, and Judge Pechman’s early discovery order, had been maddeningly unspecific about which critical comments were the subject of Ubervita’s claims of product disparagement and unfair competition. The complaint itself cited a couple of adverse comments but went on to allege that there were many other criticisms, unspecified, whose authors were Doe defendants. This unspecificity violated the prong of the Dendrite test that requires the precise actionable words to be spelled out.

Even more troubling was the fact that Ubervita was using the ruling to intimidate any new negative reviewers, posting comments in response to negative reviews, claiming that the reviews were libelous, that it had already filed a lawsuit about other commenters and that the court had allowed the names to be subpoenaed. One comment notes:

On July 2nd, 2014, we filed suit in Federal Court in Washington State to subpoena various websites for the identities of our attackers. The attacks have gone far beyond these anonymous bad-mouthings and 1-star reviews. While we won't elaborate on that issue here, you can Google it or search the Justia.com legal search engine website to see it. It was just filed today, so it may take a few days to propagate those search engines.

To our attackers: you should probably stop before you get into a lot of legal trouble.

As Levy notes, this use of the broad order to intimidate other commenters is quite problematic:

Even worse, Ubervita had started invoking Judge Pechman’s decision to post responses to critical comments, including comments made AFTER the lawsuit was filed which therefore could not have been alleged in the lawsuit to be false and defamatory, warning that Ubervita was suing its critics and inviting commenters to conduct a Google search to learn about the case – presumably, directing them to the Ars Technica article that warned of the supposed “unmasking” order. (I have linked above to PDF's of the threatening comments, not to the comments on Amazon's site, because Amazon has been removing them).

Once Levy contacted Ubervita's lawyer, Mike Atkins, the company promised to limit the subpoena being sent to Amazon to just trying to target those that the company believes are really from an Ubervita competitor. Still, Levy is reasonably troubled both by the court order and the ability of Ubervita to use such a ruling to stifle critical speech.

I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon; in my own mind I remain uncertain on whether he deliberately sought an overbroad order. It is apparent from his client's to use the early discovery order to bully its online critics, however, that Ubervita itself has the evil intent of suppressing all criticism.

Not only does it deserve condemnation for this conduct; you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.

from the wimps dept

It's become something of a sport in the past decade for roughly half of America to mock, dismiss, and otherwise tear down the Fox News channel. Personally, I'd rather like to see all of cable news go away, but there are times when I think the criticism is a tad selective and unfair. For instance, it'd be very easy to lambaste the network for the man-clowns they trotted out in the wake of a Pew Research study that showed that mothers currently make up nearly half of American household's primary wage-earners. What was for me a meh-inducing announcement was a sign of the surely-coming apocalypse for Lou Dobbs, Erick Erickson and Juan Williams. They're easily targeted as examples of the bad on the station, but if you're blinded by ideology or party alliance, you probably didn't bother to shine a light on the absolutely glorious rebuttal by Fox News host Megyn Kelly.

What we have there is an example of Fox News presenting two sides of the debate and among their own hosts to boot. In case you can't see it, Kelly uses clips from Lou Dobbs' show within her own to demonstrate her point. I mention this only to demonstrate that Fox News was not sufficiently embarrassed by the dumb things said by some of their commentators to keep from re-airing them on another of their shows. When an advocacy group wants to use those same clips for an ad-spot, however, suddenly the scramble to copyright claims has occurred. An anti-sexism group named UltraViolet submitted the ad to air on Fox's channel, painting the commentators in a negative light and then asking them to be retired from Fox News. You might expect the channel to dismiss the ad simply on the grounds that they don't want to denigrate their own programming, but that wouldn't help in trying to keep the spot off of other networks, would it? So Fox instead relied on the go-to protocol for censoring negative information. Per UltraViolet's media buyer, Buying Time, LLC:

Team – Just heard back from Fox Business. Unfortunately, Fox has rejected the ad. Due to their copyright rules, they can’t air an ad that uses their material in a spot.

It's a dumbfounding refusal on its face and is almost certainly being used as an excuse rather than a legitimate claim. Certainly nothing in copyright law would keep a network from airing commercials that use its own footage, valid copyright claim or not. It's their footage. Beyond that, this seems like a clear-cut case of fair use, the clips being central to a critique which does not seek commercial gain, are not significantly long in use, and in a way that certainly doesn't compete against Fox's own programming. Watch the ad for yourself:

Whether you think that women being primary bread-winners is okay, or whether you think that it's just the first step in the lizard-people's plot to systematically ruin American families so that children will be easy pickings for their hungry salamander love-children, using copyright claims to put down criticism is an abuse. Thankfully, UltraViolet is savvy enough to still put their spot up on YouTube instead of being too scared to show it.

from the if-you-can't-beat-'em,-intimidate-'em dept

As we've seen occur in multiple instances, bogus infringement claims have been used to make things disappear from the web. When that isn't an option, vague claims of libel or defamation are used to shut down critics. And if it isn't either of the above, the entity being criticized will fall back on the law -- or rather, law enforcement -- to achieve silence through intimidation.

"We received a knock at our door a little after 8 a.m.," said Lemaire. "Two detectives from Toronto Police Services identified themselves and asked if they could come in to discuss a matter."

Enter Det.-Consts. Irene Liska and Sergiy Lobanets, from 32 Division.

They presented "a photocopy of my post about the TDSB teaching children that the Black Panthers were a harmless social justice organization link" and specifically the "OISE and the TDSB need to be purged, or burnt to the ground" stinger.

It was almost laughable. He thought everybody would understand it was meant figuratively and obviously not literally.

Unlike other cases where the police have overreacted first before circling back to ask a few questions (for instance, strip-searching a man whose daughter drew a picture of a gun in class, or detaining a teen for three hours over some misheard Will Smith lyrics on a voicemail message), the responding officers had this sorted out in a matter of minutes, finding the whole thing nearly as laughable as Lemaire did.

[Lemaire] added he "assured them I had no intention of torching the TDSB."

Police, he said, "were immediately satisfied with that explanation and assured me there would be no charges."

The police must have been less than amused by being used to run errands for the school district as they generously gave up the name of the complainant -- TDSB spokesperson Sheri Schwartz-Maltz. Schwartz-Maltz was "out of the office" when contacted for comment but another board member offered this in the way of explanation.

[F]ellow TDSB spokesman Ryan Bird explained "when certain words or terms are used in relation to schools or the board, they are flagged -- as per protocol -- to the Toronto Police Service without exception to determine if there is any threat that would require further investigation."

Oh, look. It's our old friend "zero tolerance," once again making an ass of itself and the people willing to blindly adhere to "protocol." Lemaire's comment was clearly non-threatening. Note the lack of first-person ("I would like to burn TDSB to the ground...") or any call to action directed at others ("someone needs to burn TDSB to the ground...").

If it is indeed the policy of the school board to flag certain terms for police investigation, one wonders why it took the board six weeks to get this horrible "threat" investigated. Presumably, safety still remains first for the district. A lag of six weeks from threat to response isn't going to stop bad things from happening, no matter how low the "tolerance." [Currently at "zero."]

No, this is just old-school intimidation. Call the cops around to make a point about saying things the offended party feels just shouldn't be said. But Lemaire's having none of it, returning to his anti-TDSB blogging with the headline "Dear TDSB, You Can't Silence Me." The school board, on the other hand, has returned to the security of its "protocol," apparently seeing nothing wrong with calling the cops over a few nasty, hyperbolic words.

from the for-the-children! dept

Last summer, Russia passed an internet blacklist bill which required ISPs to censor certain sites. At the time, of course, Russian officials insisted it would be used to "protect the children" from "harmful information," including child porn, suicide instructions, and pro-drug propaganda. They insisted it would not go beyond that. Of course, within weeks, a popular blogging site, LiveJournal, was censored, followed by the Russian equivalent of Wikipedia.

And now they're targeting journalists as well. Access is reporting that added to the blacklist has been a site used by prominent free speech / civil liberties reporters in Russia who have been critical of the government. The government claims (of course) that they put the site on the blacklist due to "child pornography elements," but Access points out that rather than just removing such content, they've blocked access to the entire site, which is notable given the usage by critical reporters.

At least two prominent journalists host their blogs on LJRossia.org: Andrei Malgin, a journalist who has been very critical of the government and hosts a mirror site at LJR, and Vladimir Pribylovsky, who has been targeted for publishing a large database of government misdeeds and for disclosing official documents that expose corruption.

Once you've set up tools that enable censorship, you know they'll eventually be used for censorship.